A Pretoria High Court in the capitol of South Africa recently refused to approve a surrogacy agreement between a woman and a same-sex couple, identified in court documents as CJD and HN, because NH is closeted, raising larger concerns about whether it’s just to rule against closeted fathers just for living in homophobic cultures.

The case of the closeted fathers

CJD and HN have been together for 10 years but live in separate houses, though they see each other often. The couple wanted to impregnate their surrogate using CJD’s sperm and eggs from a donor.

HN is a doctor and worries that coming out would negatively his medical practice. Judge Ronel Tolmay worries that not coming out would negatively affect an adopted child if HN refused to acknowledge his child in public.

Judge Tolmay said, “A lot of scenarios come to mind. I can see a little toddler excitedly running towards his father in public, shouting out ‘daddy’… Would the father pretend not to be the parent? How would this impact the child?”

Is it just to rule against closeted fathers?

Johan Meyer — Health Manager at OUT LGBT Well-being, a queer healthcare organization — disparaged the ruling as “based on preposterous assumptions or scenarios,” saying, “It appears that two sets of rules apply when it comes to gay people.”

Meyer said:

A single heterosexual person could have a child, simply by having sex with someone they don’t even know, without anyone having a say about it. Going the surrogate route to have a child happens to be very expensive. This is surely something showing the couple’s commitment to having a child and something they had been thinking through thoroughly.

He added, “I cannot see where this scenario the judge mentioned would play itself out. Based on everything else we know, it seems unlikely that the partner – who happens to be in the closet – would deny knowing his child.”

Although Judge Tolmay is reportedly a progressive judge on other LGBTQ issues, Meyer raises interesting concerns about her ruling. A 2016 survey of 2,130 South Africans found that 55% of South African LGBTQ people feared discrimination because of their identities and 44% had experienced such discrimination. About 41% knew of someone who had been murdered over their LGBTQ identity.